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S. HRG. 109–208

THE KELO DECISION: INVESTIGATING TAKINGS

OF HOMES AND OTHER PRIVATE PROPERTY

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 20, 2005

Serial No. J–109–38

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, prepared 

statement .............................................................................................................. 46

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4

prepared statement .......................................................................................... 54

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 78

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 97

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2

prepared statement .......................................................................................... 99

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Eagle, Steven J., Professor of Law, George Mason University School of Law, 

Arlington, Virginia ............................................................................................... 17

Jenkins, Fred, Pastor, St. Luke’s Pentecostal Church, North Hempstead, New 

York ....................................................................................................................... 8

Kelo, Susette, New London, Connecticut ............................................................... 6

Merrill, Thomas W., Charles Keller Beekman Professor of Law, Columbia 

University School of Law, New York, New York ............................................... 14

Perez, Hon. Eddie A., Mayor, Hartford, Connecticut, on behalf of the National 

League of Cities .................................................................................................... 10

Shelton, Hilary O., Director, Washington Bureau, National Association for 

the Advancement of Colored People, Washington, D.C. ................................... 12

QUESTIONS AND ANSWERS 

Response of Steven J. Eagle to a question submitted by Senator Cornyn ......... 29

Responses of Eddie A. Perez to questions submitted by Senator Cornyn ........... 34

SUBMISSIONS FOR THE RECORD 

Berliner, Dana, Senior Attorney, Institute for Justice, Washington, D.C., prepared statement ................................................................................................... 36

Blue, Robert (Bob), Blue Family and Bernard Luggage Company, Hollywood, 

California, letter ................................................................................................... 42

Brnicevic, Linda and Cameron McEwen, Bound Brook, New Jersey, letter ...... 44

Bryant, Mark, Smith County, Mississippi, letter .................................................. 52

Dahl, Mark T., M.D., Afton, Minnesota, letter ...................................................... 56

Didden, Bart A., Port Chester, New York, letter .................................................. 57

Eagle, Steven J., Professor of Law, George Mason University School of Law, 

Arlington, Virginia, prepared statement ............................................................ 60

Farris, Don and Lynn, Lakewood, Ohio, letter ..................................................... 77

Freier, Dan, Minneapolis, Minnesota, statement ................................................. 79

Gore, Wright, III, Western Seafood Company, Freeport, Texas, letter ............... 81

Hetzel, Michael B., Shady Cove, Oregon, letter .................................................... 83

Institute for Justice, Arlington, Virginia, statement ............................................ 87

Jenkins, Fred, Pastor, St. Luke’s Pentecostal Church, North Hempstead, New 

York, prepared statement .................................................................................... 84

Kelo, Susette, New London, Connecticut, prepared statement ............................ 94

Littrell, Dorothy E., CPA, Ogden, Utah, letter ..................................................... 101

MacCloud, Bruce R., Long Branch, New Jersey, letter ........................................ 103

Page

IV

Merrill, Thomas W., Charles Keller Beekman Professor of Law, Columbia 

University School of Law, New York, New York, prepared statement ............ 106

Morley, Barbara, Lincoln, Nebraska, letter ........................................................... 124

Panday, Gopal K., Long Branch, New Jersey, letter ............................................ 126

Penner, Daryl, American Formal & Bridal, Kansas City, Missouri, letter ......... 127

Perez, Hon. Eddie A., Mayor, Hartford, Connecticut, on behalf of the National 

League of Cities, prepared statement ................................................................ 128

Regenold, Daniel P., Chief Executive Officer, Frame USA, Cincinnati, Ohio, 

letter ...................................................................................................................... 137

Seravalli, John, Daytona Beach, Florida, statement ............................................ 138

Shelton, Hilary O., Director, Washington Bureau, National Association for 

the Advancement of Colored People, Washington, D.C., prepared statement 

and attachment .................................................................................................... 139

S.T.O.P., (Sumner Trousdale Opposing Pipeline), David Baker, Gallatin, Tennessee, statement ................................................................................................. 146

Tan, Cheng, Jersey City, New Jersey, statement ................................................. 149

Tranter, Richard B., Attorney, Dinsmore & Shohl LLP, Cincinnati, Ohio, 

prepared statement and attachment .................................................................. 154

Zinko, Andrea C., and Jody Carey, San Diego, California, statement ................ 158

(1)

THE KELO DECISION: INVESTIGATING 

TAKINGS OF HOMES AND OTHER PRIVATE 

PROPERTY 

TUESDAY, SEPTEMBER 20, 2005

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., in room SD–

226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

Present: Senators Specter, Hatch, Kyl, Sessions, Cornyn, 

Brownback and Leahy. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Senate Judiciary Committee will now proceed with a hearing on 

the issue of the right to take private property under what is called 

the doctrine of eminent domain for public use. 

Our hearing is prompted by the recent decision just a few 

months ago, in June, by the Supreme Court of the United States 

in a case captioned Kelo v. City of New London, where private 

property was taken for the use of a private company, Pfizer. 

Coincidentally, I have just come from the Judicial Conference 

across the street in the Supreme Court. Senator Leahy is still there 

and will be joining us shortly. The Conference is customarily presided over by the Chief Justice, but with the death of Chief Justice 

Rehnquist, the next senior Justice, Justice Stevens, was presiding, 

and he was talking about the Kelo case because it has produced a 

great deal of criticism. 

In a humorous way, he referred to an op ed questionnaire for the 

confirmation hearing of Judge Roberts, and one of the questions 

was suggested to be, do you think it appropriate to take Justice 

Souter’s house in the New Hampshire woods for public use and 

then call it Camp Liberty? 

The writer of the question thought that Justice Souter was the 

writer of the opinion and Justice Stevens wanted to point out that 

it was he who was the writer of the opinion and he would prefer 

that before his opinions were criticized that people would read 

them. I told him I thought that was a fair comment when my turn 

came to speak, but it opened up the door for me to comment about 

opinions of the Supreme Court that I had read and that I disagreed 

with, not saying that that applies necessarily to the Kelo decision, 

2

but this is a matter which requires Congressional analysis and we 

are going to proceed with this hearing. 

The Fifth Amendment—and it is picked up by the Due Process 

Clause of the 14th Amendment—prohibits the government from 

taking private property unless it does so for a public use and with 

just compensation. There have been a number of exceptions on public use where the government transfers private property to public 

ownership for highways, parks, military bases, or, second, when 

the government would take private property for common carriers to 

make property available to the general public—railroads or a public utility company—or a third situation to eliminate a blight injurious to public health, safety, morals or welfare. 

But the Kelo case goes a significant step further and takes it for 

economic development, where there are jobs, increased taxes and 

other revenues. The issue which the Congress has authority to act 

on—this is not a constitutional issue where the Supreme Court is 

the last word—is to determine as a matter of public policy whether 

this is a wise, appropriate taking of private property. 

I have spoken a little longer today. I am up to the 3-minute mark 

and I have conducted this filibuster to give an opportunity to my 

distinguished Ranking Member to arrive so that he would be right 

in sequence with his opening statement. 

Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. I understand 

you did mention your colloquy with Justice Stevens this morning 

on the same subject, which I found fascinating, and I could see a 

number of the judges sitting around the table sort of making notes 

like I have got to go back and re-read that case. 

Chairman SPECTER. Senator Leahy, I forgot to mention one 

thing. I told Justice Stevens that we were having this Kelo hearing 

and if he had some spare time later this morning to come on over; 

we would be glad to hear from him. He didn’t think that was very 

funny, but all the other judges laughed. 

[Laughter.] 

Senator LEAHY. But I am willing to make an easy bet that none 

of them will show up. 

Vermont was actually the first State in the Union to include a 

takings clause in its constitution. So we in Vermont stand second 

to none in our respect for private property rights. The language of 

our Vermont Constitution and our U.S. Constitution makes clear 

that there are times when private property can appropriately be 

used for public purposes, so long as the taking is for a truly public 

use and the owners get just compensation. 

Now, the most difficult question is what constraints and procedures you have. But even when the justification is widely understood—a needed highway, for example—it does not alleviate the 

pain felt by property owners who are in the path of that highway, 

and you multiply that pain over and over again when families are 

displaced from their homes. 

I think of my own home which has been in my family for over 

50 years, actually before my wife and I met. There would be no 

3

compensation that could possibly—we turn down offers every year 

to buy the place. We just wouldn’t do it. It is our home. 

Ms. Kelo, I am probably one of millions of Americans who were 

distressed when we learned your story. We are concerned about 

what happened to you. I want to work with others in this Committee to fashion some solution, some better, fairer and more sensible ways for local governments to use and not misuse the significant powers they have over property owners. 

It has been said that tough cases make bad laws. It can also be 

said that bad law can lead to bad remedies, and so we are going 

to have to figure out the best way to do this. I have heard about 

legislative proposals to address this decision which could potentially benefit land speculators who want to make a quick buck or 

major corporations who want to gain more power to seize more 

property to install pipelines or create utility rights-of-way, or even 

privately owned, for-profit facilities such as sports stadiums. I will 

work with Senator Cornyn—I am delighted, John, to see you 

here—with respect to his bill and that of other members of the 

Committee. 

We have to understand that the distress a family suffers from 

having their home condemned can be just as painful, whether it is 

taken to build a road or to build a school. The Federal Relocation 

Act which applies to Federal use of eminent powers contains some 

useful ideas that can improve fairness. 

I have one final point. When Congress exercises its power to impose new conditions on local and State governments in areas that 

local and State governments have traditionally handles, then we 

should move cautiously so we don’t have unintended consequences. 

I know that many, many States are already acting to impose additional restrictions and establish new procedures governing the use 

of eminent domain. We should act carefully, with an awareness of 

the remedies the States are also considering. 

So I thank the distinguished Senator from Texas for being here, 

and I hope that Professor Merrill of Columbia University, Mayor 

Perez of Hartford, Connecticut, and Professor Eagle from George 

Mason will help the Committee in figuring out where to go. It is 

going to be a difficult area. 

With that, I will hush up and listen to them, Mr. Chairman. I 

will follow your example. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Our first witness is our distinguished colleague, Senator John 

Cornyn. He was a Texas State court judge, later a Supreme Court 

Justice of the State of Pennsylvania, and elected to— 

Senator LEAHY. Texas. 

Chairman SPECTER. Texas. 

I almost demoted you, John. 

He was elected to the U.S. Senate in 2002 and has been a very 

active, contributing member to this Committee. 

Welcome, Senator Cornyn. Thank you for introducing legislation 

on this subject and we are looking forward to your testimony. 

4

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman, and ranking member, Senator Leahy. I want to congratulate you and thank you for 

holding this hearing today about the right of every American to be 

protected against government seizure of their homes and their 

businesses and their property. 

As we know, this week is Constitution Week, a week that is dedicated to celebrating the great principles of our Nation’s founding 

document. Without question, private property rights rank among 

these important rights contemplated and outlined by our Founding 

Fathers. Thomas Jefferson wrote, ‘‘The protection of such rights is 

the first principle of association, the guarantee of everyone to a free 

exercise of his industry and the fruits acquired by it.’’ 

Accordingly, these rights were enshrined in the Fifth Amendment, as the Chairman has already noted. Yet, as the Chairman 

observed, the United States Supreme Court has weighed into this 

issue in a way that perhaps no one had really contemplated before, 

effectively, in my opinion, reading the public use requirement out 

of the Constitution. 

Justice O’Connor, in a dissent, warned, ‘‘The specter of condemnation hangs over all property. Nothing is to prevent the state 

from replacing any Motel 6 with a Ritz-Carlton, any home with a 

shopping mall, or any farm with a factory.’’ She further warned 

that under the Supreme Court’s decision in Kelo, any property may 

now be taken for the benefit of another private party, and the fallout from this decision will not be random. 

Indeed, this is an issue that has brought together people across 

the ideological spectrum without regard to party affiliation. I am 

proud that Senator Bill Nelson and I have sponsored some legislation which we filed the week after this decision came down, and I 

look forward to working with you, Mr. Chairman, and all of our colleagues on the Committee to refine that legislation in a way that 

meets the goals that I know we all share. I couldn’t agree more 

with Senator Leahy that we do need to be deliberate about it and 

careful in crafting the appropriate remedy. 

To just show the range of individuals and groups with concerns, 

an amicus brief filed by the National Association for the Advancement of Colored People and AARP, among other organizations, 

noted, ‘‘Absent a true public use requirement, the Takings Clause 

will be employed more frequently. The takings that result will disproportionately affect and harm the economically disadvantaged, 

and in particular racial and ethnic minorities and the elderly.’’ 

Suffice it to say Kelo was a disappointment to an awful lot of 

people. I actually in my office have gotten more telephone calls concerned about this decision than the decision on the Ten Commandments and other cases that perhaps you might think would provoke 

more controversy. 

But, I think the sense is that private property rights under the 

rule of law is something that is always protected, and particularly 

against the awesome power of the government, except under the 

most exacting of requirements, and it has sent a shock wave in 

many ways throughout America and caused people to question 

whether they are actually secure in those rights or not. 

5

The Institute for Justice has documented more than 10,000 properties either seized or threatened with condemnation for private development in the 5-year period between 1998 and 2002. This is one 

reason, among others, that I filed Senate bill 1313, entitled the 

Protection of Homes, Small Businesses and Private Property Act of 

2005. As I noted, Senator Bill Nelson, of Florida, is the principal 

cosponsor, but I am happy to report today that a total of 28 of our 

colleagues have joined me as cosponsors of this important legislation. 

This bill is intended to be specific and to deal with the Federal 

power of eminent domain which, of course, doesn’t cover the whole 

spectrum, because State constitutions obviously cover that at the 

State level. But it is designed to be complementary of the power 

of the States to deal with this on a State-by-State basis and to deal 

primarily with Federal issues. 

It also would deal with the exercise of eminent domain power by 

State and local governments using Federal funds. So, it would extend not only to the Fifth Amendment authority of the Federal 

Government to exercise eminent domain, but also reach the use of 

Federal funds in State and local government hands. 

In conclusion, Mr. Chairman, the protection of homes, small businesses and other private property rights against government seizure and other unreasonable government interference is a fundamental principle and core commitment of our Nation’s Founders. In 

the aftermath of Kelo, we must all take necessary action to restore 

and strengthen the protections of the Fifth Amendment. I would 

ask my colleagues to give me their consideration of the legislation 

that we have filed, and pledge to work together with you, Mr. 

Chairman, and the ranking member, Senator Leahy, and all our 

colleagues to try to achieve a legislative product which accomplishes the result that I know we would all like to reach. 

Let me just ask, if I may, in closing, Mr. Chairman—I have a 

copy of the testimony of Dana Berliner, Senior Attorney for the Institute for Justice. They were unable to be here today, but I would 

ask that his testimony be made part of the record by unanimous 

consent. 

Chairman SPECTER. Without objection, the testimony will be 

made a part of the record. 

Senator CORNYN. Thank you very much. 

[The prepard statement of Senator Cornyn appears as a submission for the record.] 

Chairman SPECTER. Well, thank you very, Senator Cornyn. I am 

going to reserve my questions for you until we have our markup. 

That is when we all sit down and talk about the bill. I personally 

and the Committee generally appreciates your leadership putting 

in a bill so promptly after the decision came down, and 28 cosponsors is a hallmark of a lot of support. 

Senator Leahy. 

Senator LEAHY. Well, I am going to do the same. Of course, like 

all of us, I will be having chats with Senator Cornyn privately on 

this, but the markup will be the place we will talk about it. I also 

commend him for bringing us a vehicle so we can begin that discussion. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

6

We now call our witnesses today: Ms. Suzette Kelo, Pastor Fred 

Jenkins, Mayor Eddie Perez, Mr. Hilary Shelton, Professor Thomas 

Merrill and Professor Steven Eagle. Our lead witness is the lead 

plaintiff in this case. 

Ms. Kelo, you are now an objective, impartial known noun. This 

case will be referred to as ‘‘Kelo’’ and they will always be talking 

about you. 

She is a lifelong resident of southeastern Connecticut, the mother 

of five grown sons. She bought her Victorian home on E Street in 

Fort Trumbull in July 1997, and from her dining room on a clear 

day they can see Otok Point at the top of Long Island. She has 

been activist to save the Fort Trumbull neighborhood since the day 

before Thanksgiving in 2000, when a notice was posted on her door 

by the New London Development Corporation that she and her 

family would have to leave their home in a few months. Despite 

her loss before the Supreme Court, she continues to inspire and advocate for a return to sensible eminent domain policy. 

Thank you for what you are doing, Ms. Kelo, and we look forward to your testimony. 

STATEMENT OF SUSETTE KELO, NEW LONDON, CONNECTICUT 

Ms. KELO. I want to thank Chairman Specter and the rest of the 

Senate Judiciary Committee for the opportunity to testify about 

legislation to cutoff funding to governments that abuse eminent domain law. 

My name is Susette Kelo and I live in New London, Connecticut. 

I am the Kelo in Kelo v. City of New London, the now infamous 

U.S. Supreme Court case in which the Court ruled that private 

property, including my home, could be taken by another private 

party who promises to create more jobs and taxes with the land. 

I sincerely hope that Congress will do what judges and local legislators so far have refused to do for me and for thousands of people like me across the Nation—protect our homes under a plain 

reading of the United States Constitution. Federal lawmakers 

should pass legislation that will withhold Federal development 

funding for cities that abuse eminent domain for private development, such as the one that could take my home which received $2 

million in Federal funds. What we have now at the local, State and 

Federal level amounts to government by the highest bidder. That 

has got to stop. 

I would like to tell you a little more of my story so you can hopefully see why the law needs to be changed. In 1997, I searched all 

over for a home and finally found this perfect little Victorian cottage with beautiful views of the water. I was working then as a 

paramedic and was overjoyed that I was able to find a beautiful little place I could afford on my salary. I spent very spare moment 

fixing it up and creating the kind of home I had always dreamed 

of, and I painted it salmon pink because that was my favorite color. 

In 1998, a real estate agent came by and made me an offer on 

the house on behalf of an unnamed buyer. I explained to her that 

I was not interested in selling, but she said that my home would 

be taken by eminent domain if I refused to sell. She told me stories 

of her relatives who had lost their homes to eminent domain. Her 

advice: give up; the government always wins. 

7

So why did the city and the New London Development Corporation want to kick us out? To make way for the luxury hotel, upscale 

condos and other private development that could bring in more 

taxes to the city and possibly create more jobs. The poor and middle class had to make way for the rich and politically connected. 

As quickly as the NLDC acquired homes in my neighborhood, they 

came in and demolished them, with no regard for the remaining 

residents who lived there, most of whom were elderly. 

In late 1999 after graduating from nursing school, I became a 

registered nurse and began working at Backus Hospital in southeastern Connecticut. Early in 2000, the public hearings were eventually held and the Fort Trumbull plan was finalized. Our home 

was not part of that plan, and by that time I had met a man who 

shared my dreams and the two of us spent our spare time and 

money fixing up our home. We got a couple of dogs. We planted 

some flowers. I braided rugs. We found a lot of antiques that were 

just perfect for our home. Tim, who was a stone mason, did all 

kinds of stone work around the house. When I first bought it, it 

had been run down. Today, it is a beautiful home. 

On the day before Thanksgiving, in 2000, a sheriff taped a letter 

to my door stating that my home had been condemned by the City 

of New London and the NLDC. We did not have a very pleasant 

holiday, and each Thanksgiving since has been bittersweet. 

Happy that we are still in our homes, but afraid we could be 

thrown out any day, the following month the Institute for Justice 

agreed to represent us. Without them, none of us would be here 

today. None of us could have afforded the tremendous legal costs 

that would have been incurred over the years. 

A year later, in 2001, we went to trial in New London, and after 

hearing ten different reasons for why our homes had been seized, 

from so-called park support, to roads, to museums, to warehousing, 

the judge decided no one could give him a straight answer and he 

overturned the demolition sentences on our homes. 

One night in late October of 2002, I was working in the hospital 

in the emergency room when a trauma code had been called and 

a man who had been in a car accident was wheeled to the trauma 

room. To my horror, after several minutes of working alongside Dr. 

Wasalik and the nurses, I realized it was my partner, Tim. For 2 

weeks, he lay in a coma and we did not know if he would live or 

die. Finally, he pulled through, and although permanently disabled, it was a miracle he was finally able to walk out alive 2 

months later. 

While he was still hospitalized, the Connecticut Supreme Court 

heard our case, and a while later after Tim well enough, we made 

it official by getting married. We still had no idea if we would keep 

our home, as the Connecticut court would take 15 months to reach 

a decision. When they ruled against us by a four-to-three decision, 

we were stunned. Our lives were on hold for another year as we 

waited for the U.S. Supreme Court to hear our case. We had high 

hopes that the Supreme Court would protect our homes, but by one 

vote they let all Americans down. 

My neighborhood was not blighted; it was a nice neighborhood 

where people were close. Even though many of our homes had been 

destroyed, the people remaining are still good neighbors and good 

8

friends, and we don’t want to leave. None of us asked for this. We 

simply were living our lives, working and taking care of our families and paying our taxes. 

The city may have narrowly won the battle on eminent domain, 

but the war remains in Fort Trumbull and across the Nation. What 

is happening to me should not happen to anyone. Congress and 

State legislatures need to send a message to local government that 

this kind of abuse of power will not be funded or tolerated. Special 

interests who benefit from this use of government power are working to convince the public and legislatures that there isn’t a problem, but I am living proof that there is a problem. 

This battle against eminent domain abuse may have started as 

a way for me to save my little pink cottage, but has rightfully 

grown into something much larger—the fight to restore the American dream and the sacredness and security of each one of our 

homes. 

Thank you very much. 

[The prepared statement of Ms. Kelo appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Ms. Kelo. 

Our next witness is Pastor Fred Jenkins, of St. Luke’s Pentecostal Church in North Hempstead, New York. He founded his 

church in 1979 and has been in the ministry for 26 years. For 

years, the congregation leased basement space and saved money so 

that it could buy a church, and in 1997 they bought a piece of property that included a partially constructed church. 

Before they could build, the North Hempstead Community Development Agency condemned the property for private retail development. 

Pastor Jenkins, I can understand your unhappiness about that 

and we are interested in what you have to say about public condemnation. 

STATEMENT OF FRED JENKINS, PASTOR, ST. LUKE’S 

PENTECOSTAL CHURCH, NORTH HEMPSTEAD, NEW YORK 

Rev. JENKINS. Thank you, Chairman Specter and the rest of the 

Senate Judiciary Committee, for the opportunity to testify about 

legislation to stop Federal funding to local governments. 

My name is Fred Jenkins and I am the pastor of St. Luke’s Pentecostal Church in North Hempstead, New York. After years of 

meeting in a rented basement and saving up money, we were able 

to find a permanent home for St. Luke’s, but it was taken from us 

by the North Hempstead Community Development Agency, which 

uses funding from HUD for private retail development. Six years 

later, the place which we bought was still empty. 

I founded St. Luke’s in 1979, and over the years our congregation 

grew to over 100 parishioners. St. Luke’s has rented in the Prospect Avenue neighborhood of North Hempstead. In the early 1980s, 

we began raising and saving money to purchase a permanent home 

for our church. For years, members sacrificed and contributed 

money and time to our building fund. We are certainly not a 

wealthy church, but everyone pitched in. 

We looked hard for a perfect place for our church and we found 

that home in 1994. Nothing else fit St. Luke’s needs like this buildVerDate 0ct 09 2002 14:08 Dec 27, 2005 Jkt 024723 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24723.TXT SJUD4 PsN: CMORC
9

ing. The size would fit the 100-plus members and the price was 

manageable. It was where most of the parishioners live and in the 

area where we help people. My congregation has always been very 

active in our community. We pay for members’ funerals, help the 

homeless, assist parishioners with drug and alcohol abuse, and provide rent money and heating oil to needy families. 

We purchased the land at 822 Prospect Avenue and the almostcompleted church building in December 1997. The congregation 

was so excited to finally have a permanent home. We were eager 

to start building. People went down to the site and began cleaning 

up. We spent a considerable amount of money preparing to complete the building. 

We had completed everything required by the building department and submitted our application for a new building permit after 

we bought the property. We also took out a mortgage for over 

$207,000. We still make mortgage payments, but we don’t have the 

building. For a year-and-a-half, we applied for permits. Meanwhile, 

not one person from the town told us our property was going to be 

condemned. 

In November 1999, we received a letter from the NHCDA offering to buy our property for $80,000. This was $50,000 less than 

what we had paid for the property, and far less than the mortgage. 

This was the first time we heard that the town had a plan to take 

our property. That March, the town officially seized our new home. 

We had no idea that our new building had been slated for development. In 1994, nobody bothered to tell us this. While the Commissioner of the Department of Building told us how excited he was 

over our redevelopment of this property, he not once mentioned 

that the town planned to seize it. 

St. Luke’s has always taken care of the community, and in return we were kicked off our property and it was taken for retail 

development. It is now being used to store building material for the 

construction going on across the street. We are back in the basement we rented for years, we are at square one. But while the congregation is broken-hearted and is still paying the mortgage on the 

property that was seized from us, we have yet to receive compensation. 

Chairman SPECTER. Pastor Jenkins, how many more pages do 

you have on your statement? 

Rev. JENKINS. Just a little. 

Chairman SPECTER. OK. 

Rev. JENKINS. This country is full of people like my parishioners 

who work hard and save up to buy something to call home. I ask 

you to please stop funding local governments like North Hempstead 

that use Federal dollars to take away homes, businesses and 

churches for private gain. 

I thank you for the opportunity of appearing before this Committee. 

[The prepared statement of Rev. Jenkins appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Pastor Jenkins. 

Our next witness is the Mayor of Hartford, Connecticut, Mayor 

Eddie Perez, elected in 2001. His election followed years of service 

to his community, including development of a revitalization plan as 

10

president and executive director of the Southside Institutions 

Neighborhood Alliance. He was the administrator of Trinity College, from which he holds a degree in economics. He appears here 

today as the representative of the National League of Cities. 

Thank you for joining us today, Mayor Perez, and the floor is 

yours. 

STATEMENT OF HON. EDDIE A. PEREZ, MAYOR, HARTFORD, 

CONNECTICUT, ON BEHALF OF THE NATIONAL LEAGUE OF 

CITIES 

Mayor PEREZ. Thank you, Mr. Chairman. Mr. Chairman, I request insertion of my written statement and attachments into the 

record of today’s hearing. 

Chairman SPECTER. Without objection, your full statement will 

be made a part of the record. 

Mayor PEREZ. Good morning, Mr. Chairman and members of the 

Committee. I am Mayor Eddie A. Perez, of Hartford, Connecticut’s 

capital city. I am testifying this morning on behalf of the National 

League of Cities. 

The anxiety some people have with eminent domain is real. The 

history of how government has used eminent domain is mixed, but 

most of it is good. You have heard from some people who oppose 

it, but now let me speak for those people, and most importantly 

those communities, that but for the use of eminent domain would 

have few reasons to dream of a better future. 

Since the Court issued the decision last June in Kelo v. City of 

New London, the frenzied rhetoric and misinformation about the 

use of eminent domain for economic development purposes has 

been overwhelming and, most importantly, disappointing. Once you 

get past the hype, two important points stand out. 

First, eminent domain is a powerful economic development tool 

that helps cities create jobs, grow businesses, and most importantly 

strengthen neighborhoods. No locally elected official I know would 

use eminent domain to undermine the integrity or confidence in 

home ownership in his or her community. For urban America, and 

communities of color in particular, home ownership is the ticket to 

the American dream. 

Second, if Congress were to pass legislation to hamstring State 

and local governments from using eminent domain in some of our 

poorest communities, I believe that we would have fewer people becoming homeowners, which means fewer participants in the administration’s concept of an ownership society. 

The Kelo decision does not expand the use or power of eminent 

domain by States or municipalities, nor did the Court’s decision 

overturn existing restrictions imposed at State and local levels. The 

Kelo decision affirmed that eminent domain, a power derived from 

State law, is best governed by the States and their local political 

subdivisions. The Kelo Court affirmed federalism and the Tenth 

Amendment. 

Since the opinion’s release, State after State, including my home 

State of Connecticut, have taken the Court at its word. Many State 

legislatures have begun or will begin during the upcoming legislative session to examine their laws governing the use of eminent domain through proposed bills and study commissions. 

11

Regardless of the individual State outcomes, the Court correctly 

concluded that eminent domain is not a one-size-fits-all power, and 

that States are better suited than Congress to govern its use. PostKelo, the use of eminent domain will receive increased scrutiny. 

Cities which generally use eminent domain as a last resort because 

of its significant cost in financial, political and human terms, are 

under an ever-increasing spotlight when it comes to the use of eminent domain. 

However, the availability of eminent domain to the city of Hartford has facilitated economic development and growth in our community. Projects such as Adriaen’s Landing, a $500 million mixedused development, including a convention center, hotel, condominiums and retail, and the Learning Corridor, a $120 million, 16-acre 

complex of a K–12 magnet school development developed by a nonprofit developer in one of Hartford’s poorest neighborhoods, would 

not have been possible without the city having the eminent domain 

power as a development tool. 

The Kelo decision highlights the natural tensions public officials 

confront daily between individual rights and community needs. 

One of the most important responsibilities of any local city government is to provide for economic and cultural growth of that community. 

Let me close by saying that municipal officials like me know 

from experience what the Supreme Court has affirmed, that economic development is a public use. Without the ability to exercise 

eminent domain judiciously, cities, in particular, would miss significant opportunities to create jobs, grow their economies and increase the quality of life for all its residents. 

Urban development projects that have used eminent domain, 

ranging from Texas Rangers Stadium, to Lincoln Theater, to the 

Baltimore Inner Harbor, have all provided real public benefits to 

their communities. Without eminent domain, New Orleans and 

Louisiana will not be able to redevelop the devastated areas caused 

by Katrina. 

The National League of Cities urges a careful examination of the 

underlying premise of the anti-Kelo bills pending before Congress. 

The National League of Cities also urges Congress generally, and 

the Senate in particular during its coming consideration of the 

Transportation, Treasury and HUD appropriations bill for fiscal 

year 2006 not to use the appropriations process to legislate eminent domain. 

The Kelo decision has justifiably stirred some debate, but it 

has— 

Chairman SPECTER. Mayor Perez, how many more pages do you 

have of your statement? 

Mayor PEREZ. Three sentences. 

Chairman SPECTER. Go ahead. 

Mayor PEREZ. The Kelo decision has justifiably stirred some debate, but it has done nothing more than affirmed the status quo. 

I urge Congress to avoid taking any hasty action that would undermine the ability of State and local governments to thoroughly review this issue and create local solutions. The best solutions to 

what works at the local level come from conversations and compromise at town halls and in neighborhood living rooms. Let comVerDate 0ct 09 2002 14:08 Dec 27, 2005 Jkt 024723 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24723.TXT SJUD4 PsN: CMORC
12

munities develop their own vision of what they need and let them 

keep the tools that they need to get there. 

Thank you, Mr. Chairman. 

[The prepared statement of Mayor Perez appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mayor Perez. 

Our next witness is the Director of the NAACP’s Washington Bureau, Mr. Hilary Shelton. Prior to taking this position, he has had 

a very distinguished career with the NAACP, worked with the 

United Negro College Fund, and before that the United Methodist 

Church on Capitol Hill. Mr. Shelton holds degrees in political 

science, communications and legal studies from Howard, the University of Missouri, in St. Louis, and Northeastern University in 

Boston. 

Thank you very much for joining us today, Mr. Shelton, and 

thank you very much for lending us a very distinguished lawyer, 

Hannibal Kamerer, who is on our staff and doing very good work. 

STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WASHINGTON, D.C. 

Mr. SHELTON. Thank you, Chairman Specter. It is an honor to 

be before this Committee. I want to thank Ranking Member Leahy 

and the members of the panel for inviting me here to talk about 

property rights in a post-Kelo world. 

I should mention I am Hilary Shelton, Director of the NAACP’s 

Washington Bureau, the government affairs office of the Nation’s 

oldest and largest grass-roots-based civil rights organization. 

Given our Nation’s very sorry history of racism, bigotry and a 

basic disregard on the part of too many elected and appointed officials to the concerns and rights of racial and ethnic minority Americans, it should come as no surprise that the NAACP was deeply 

disappointed with the Kelo decision. Racial and ethnic minorities 

are not just affected more often by the exercise of eminent domain 

power, but we are almost always affected differently and more profoundly. 

The expansion of eminent domain to allow government or its designees to take property simply by asserting that it can put the 

property to a higher use will systematically sanction transfers from 

those with less resources to those with more. 

The history of eminent domain is rife with abuses specifically 

targeting racial and ethnic minority and poor neighborhoods. Indeed, the displacement of African-Americans and urban renewal 

projects are so intertwined that urban renewal was often referred 

to as black removal. The vast disparities of African-Americans or 

other racial and ethnic minorities that have been removed from 

their homes due to eminent domain actions are well documented. 

For your information, I have included examples of these documented disparities in my written testimony. 

The motives behind the disparities are varied. Many studies contend that the goal of many of these displacements is to segregate 

and maintain the isolation of the poor, minority and otherwise outcast populations. Furthermore, condemnation in low-income or predominately minority neighborhoods is often easier to accomplish 

13

because these groups are less likely or are often unable to contest 

the actions either politically or in our Nation’s courts. 

Last, municipalities often look for areas with low property values 

when deciding where to pursue redevelopment projects because it 

costs the condemning authorities less, and thus the State or local 

government gains more financially when they replace areas of low 

property value with those with higher property values. 

Thus, even if you dismiss all other motivations allowing municipalities to pursue eminent domain for private development, as was 

upheld in the U.S. Supreme Court in Kelo, it will clearly have a 

disparate impact on African-Americans and other racial and ethnic 

minorities in our country. 

Not only are African-Americans and other racial and ethnic minorities more likely to be subjected to eminent domain, but the 

negative impact of these takings on these men, women and families 

is much greater. 

First, the term ‘‘just compensation’’ when used in eminent domain cases is almost always a misnomer. The fact that a particular 

property is identified and designated for economic development also 

certainly means that the market is currently undervaluing that 

property or that the property has some trapped value that the market is not yet recognizing. 

Moreover, when an area is taken for economic development, lowincome families are driven out of their communities and find that 

they cannot afford to live in the revitalized neighborhoods. The remaining affordable housing in the areas are almost certainly to become less so. In fact, one study from the mid-1980s showed that 86 

percent of those relocated by an exercise of eminent domain power 

were paying more rent at their new residence, with the median 

rent almost doubling. 

Furthermore, to the extent that such exercise of the takings 

power is more likely to occur in areas with significant racial and 

ethnic minority populations, and even assuming a proper motive on 

the part of government, the effect will likely be to upset organized 

minority communities. 

This dispersion both eliminates established community support 

mechanisms and has a deleterious effect on those groups’ ability to 

exercise what little political power they may have established. The 

incentive to invest in one’s community financially and otherwise directly correlates with the confidence in one’s ability to realize the 

fruit of such efforts. 

By broadening the permissible uses of eminent domain in a way 

that is not limited by specific criteria, many minority neighborhoods will be at increased risk of having property taken, and there 

will be even less incentive to engage in community-building and 

improvement. 

In conclusion, allow me to reiterate that by allowing pure economic development motives to constitute public use of eminent domain purposes, State and local governments will now infringe on 

the property rights of those with less economic and political power 

with more regularity. As I have testified today, these groups—lowincome Americans and a disparate number of African-Americans 

and other racial and ethnic minority Americans—are the least able 

to bear the burden. 

14

I want to thank you again, Chairman Specter, Ranking Member 

Leahy and members of the Committee, for allowing me to testify 

before you today about the NAACP’s position on eminent domain 

and the post-Kelo, prepared statement landscape. The NAACP 

stands ready to work with the Congress and State and local municipalities to develop legislation to end eminent domain abuse 

while focusing on real community development concerns like building safe, clean and affordable housing in established communities 

with good schools, an effective health care system, small business 

development and a significant, available living-wage job pool. 

I thank you very much for the opportunity. 

[The prepared statement of Mr. Shelton appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Shelton. 

Our next witness is Professor Thomas Merrill, who is the 

Beekman Professor of Law at Columbia Law School. He has written extensively on the Fifth Amendment Takings Clause on eminent domain. He has a distinguished record, having been of counsel 

at the Chicago law firm of Sidley Austin. A graduate of the University of Chicago Law School, he served as law clerk to Judge David 

Bazelon of the District of Columbia Court of Appeals, and clerked 

for Justice Harry Blackmun on the Supreme Court; also, Deputy 

Solicitor General from 1987 to 1990. 

Thank you for joining us, Professor Merrill, and the floor is 

yours. 

STATEMENT OF THOMAS W. MERRILL, CHARLES KELLER 

BEEKMAN PROFESSOR OF LAW, COLUMBIA UNIVERSITY 

SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. MERRILL. Well, thank you, Mr. Chairman, for inviting me, 

and I thank the members of the Committee for their attention. As 

you pointed out, I have been studying issues involving eminent domain for a number of years. I should also indicate that I filed an 

amicus curiae brief in the Kelo case on behalf of the American 

Planning Association and the Congress of Economic Development. 

Given my involvement with this legal issue, I did not find the 

Kelo decision especially remarkable. What I did find remarkable, 

indeed quite stunning, was the overwhelming reaction to the decision on the part of the American public. I certainly don’t have to 

tell the Senators what the American public thinks of the characterization of the Kelo decision that has been disseminated since it was 

decided. 

This has really sobered me quite a bit. I have given a great deal 

of thought to what it is about the decision that has caused this reaction, what many of us academics might have been missing in the 

eminent domain picture that caused us perhaps to overlook it. 

There are many explanations, but I think the nub of the problem 

is that the American people believe that property rights are invested with significant moral significance. It is not just a measure 

of value; it is something that people think has an important moral 

and constitutional dimension. 

They are sophisticated about this. They do not think it is an absolute moral right. They recognize that in certain circumstances, 

for example, in response to a national disaster like the Katrina 

15

hurricane, they may have to compromise their rights. They may be 

forced to evacuate their homes, and in certain circumstances their 

property may have to be taken through eminent domain for some 

public project. 

But I think the overwhelming reaction has been that the justification for taking people’s property, in which they have important autonomy interests and important aspects of their personal 

identity invested, has to be some higher justification than simply 

providing a higher valued use to some other owner or generating 

more tax revenues for the city. I think the perception which is 

nearly universal is that those sorts of justifications are not adequate to substantiate the exercise of eminent domain. 

Now, I don’t think that the Kelo majority intended to endorse the 

proposition that anybody’s property can be taken merely on the 

grounds that someone else is going to put it to a higher use or that 

it will generate more tax revenue. I think the point of the Kelo decision is that the interests in protecting property that all Americans, I think, recognize are better served through some institutional mechanism other than judicial review by the Federal courts. 

It is better protected through political processes at the Federal and 

State level or by the State judiciary. 

I think the fact that we are sitting here today having these hearings is testimony to the wisdom of the Supreme Court majority’s 

assessment that, in fact, the political process is appropriate to protect people’s property from eminent domain, because the people 

have spoken and I think the political process is responding. 

So the significant question is really how to respond, and I think 

very briefly there are three strategies for reform of eminent domain. One is the prohibitory strategy, which would simply be to 

take up the cause of public use review that the Federal courts have 

indicated they do not intend to exercise with great strenuousness 

and to try to get courts to implement limitations on the power of 

eminent domain through some type of prohibition, such as the prohibition on the use of eminent domain for economic development. 

Another strategy would be to try to improve the processes by 

which local communities decide whether to use the power of eminent domain, to make them more open, more inclusive, and to require that communities respond more completely to people’s objections to having their property taken by eminent domain. 

A third would be to improve the compensation that is awarded. 

I think some of the other witnesses have alluded to the fact that 

the compensation that the courts have required is inadequate; it is 

not full compensation. I think legislative bodies are well positioned 

to provide more complete type of compensation. 

I think the prohibitory strategy is the logically tempting one. You 

read the decision, you disagree with the decision, you think it 

should be changed. We should actually have courts impose limits 

on eminent domain rather than having them decline to do so. But 

I think it is a temptation that should be resisted. 

First of all—and I don’t have time to get into this—the history 

of eminent domain does not give one great confidence that the judiciary is capable of identifying the line that should be drawn between the permissible and impermissible exercises of eminent domain. The judiciary struggled with this issue for 200 years and esVerDate 0ct 09 2002 14:08 Dec 27, 2005 Jkt 024723 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24723.TXT SJUD4 PsN: CMORC
16

sentially gave up because they could not discern the line. Now, 

maybe the legislature can help them out with more precise lines, 

but some of the legislation that has been introduced so far does not 

suggest to me that that is going to be forthcoming. 

I also think there are concerns about federalism here. I think 

Congress is better suited to impose limits than the Supreme Court, 

but property rights have different circumstances around the country. I think this is an area where State variation and experimentation ought to be allowed to flourish. I think we need to remember 

the lessons of federalism and not impose a one-size-fits-all limitation on the exercise of eminent domain. 

A third thing that people should be worried about is that if local 

governments really want to do something to rearrange property 

rights, there is a good chance that they are going to find some way 

to do it. And if they can’t use eminent domain to do it, they will 

be tempted to use other powers like the zoning power or the power 

of taxation in order to achieve their objective. 

From a property rights owner’s position, it seems to me that eminent domain, if you look at the various powers of government, is 

in a way the most attractive way in which to have your property 

rearranged because you get just compensation if your property is 

taken through eminent domain. You don’t get just compensation if 

it is taken through zoning or through the power of taxation. So we 

need to worry about displacing the energies of local government 

away from eminent domain to other types of regulation that actually might be more harmful to property owners. 

Let me just mention quickly a couple of practical problems with 

the prohibitory strategy. 

Chairman SPECTER. Professor Merrill, at this point could you 

summarize the balance of your statement? 

Mr. MERRILL. I will summarize very briefly. I think there are 

some practical problems with trying to legislate prohibitions. I 

think the procedural reforms and the just compensation reforms 

are more auspicious. I think they are well-suited to the legislature’s capabilities, and I would urge the Congress to consider intervening in those areas rather than imposing limits on the use of the 

eminent domain power by local governments. 

Thank you. 

[The prepared statement of Mr. Merrill appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Merrill. 

Our final witness is Professor Steven Eagle, who is the author 

of the treatise on regulatory takings. He is Professor of Law at 

George Mason University Law School. He is Vice Chair of the Land 

Use and Environmental Group of the Section of Real Property, Probate and Trust Law of the American Bar Association, and a graduate of the Yale Law School. 

Which year, Professor Eagle? Which year did you graduate from 

the Yale Law School? 

Mr. EAGLE. 1970, sir. 

Chairman SPECTER. OK, you are one of the new guys. 

[Laughter.] 

Chairman SPECTER. We will start the clock at your full 5 minutes, Professor Eagle. 

17

STATEMENT OF STEVEN J. EAGLE, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, 

VIRGINIA 

Mr. EAGLE. Thank you, Mr. Chairman and distinguished members of the Committee. I think that Professor Merrill, my distinguished colleague, is absolutely correct when he says that the 

American people think that property rights are invested with moral 

significance. That has been so since the founding. That is why we 

have the Public Use Clause in the Constitution to begin with. 

The rule of law is inconsistent with the notion that everyone’s 

property is up for grabs. That is why Justice O’Connor’s statement 

which is now so famous about the Motel 6 being replaced with the 

Ritz Carlton struck such a resonant chord in the American people 

and why Senator Cornyn quoted it in his testimony earlier today. 

Justice Stevens’ majority opinion and Justice Kennedy’s concurrence place substantial faith in the ability of courts to devise tests 

to detect condemnation abuse and to exercise vigilance. In fact, 

however, the Supreme Court’s Williamson County test put an almost insurmountable barrier for regulatory takings issues to be 

heard in the Supreme Court. And even apart from that, lower Federal courts have been notoriously unreceptive to property rights 

litigation, which involves the application of vague tests to heavily 

fact-bound problems. 

Making things worse, the Stevens opinion assumes that condemnation for economic development is a fairly pristine enterprise 

where expert staff utilize professional judgment to discern the need 

for redevelopment. Plans subsequently are formulated with input 

from all segments of the community, and only then are private redevelopers and corporations engaged. 

This description seems somewhat naive. In most communities, 

political, commercial and financial elites are personally well-acquainted and connected through a multitude of social, civic and 

professional relationships. One hand washes the other. This does 

not necessarily imply corruption or overt favoritism. Nevertheless, 

in the nature of things the well-connected have a decided advantage. For these groups, the raw material for both civic and personal 

gain is often the property of the less well-off and less well-connected. Mr. Shelton a few minutes ago spoke eloquently to that situation. 

Also, the Stevens and Kennedy opinions place emphasis on 

courts’ ability to look at pretextual condemnation, or those of primary benefit to corporations. But here I think Justice O’Connor 

had it absolutely right when she said that the trouble with such 

redevelopment condemnations is that, by definition, benefits are 

merged and mutually reinforcing. Any boon for Pfizer or the plan’s 

developer is difficult to disaggregate from the promised public benefits—gains in taxes and jobs. 

The fact is, Mr. Chairman, that the quest for the smoking gun, 

the explicit quid pro quo between condemnor and subsequent private owner, not only is elusive, it is irrelevant. Cities like New 

London and States like Connecticut primarily care about their reputations as redevelopment partners. If major companies like Pfizer 

are pleased at the way things work out, the localities will be better 

redevelopment partners in the future and more avidly sought by 

18

companies. Likewise, if the corporations are displeased, future relocations become more difficult. An explicit quid pro quo isn’t needed. 

The question cities ask is not who got the primary benefit, but 

whether we got a decent deal, corporations ask whether we got a 

decent deal, and the only people who do not get a decent deal are 

the condemnees left to suffer the costs because, as we know, just 

compensation is not full compensation. 

It is not even clear, Mr. Chairman, that condemnation ultimately 

benefits the community because, after all, companies relocate from 

hometowns that themselves might have been distressed. Also, of 

course, many of these subsidies given to companies only compensate for the fact that naturally speaking it would have been better for them to locate elsewhere. 

I think that a meaningful bill passed by Congress would have to 

first limit condemnation to traditional public uses and, second, I 

suggest should be accompanied by a grant of standing to landowners facing condemnations of their homes or businesses. I am 

not advocating standing to attack entire programs, but rather 

standing to contest the taking of one’s own property. 

Condemnation for economic redevelopment empowers every municipal recruiter for relocating businesses, every corporate CFO and 

every real estate developer with the ability to seek out private 

lands that could be profitably reconverted. It is not too much to ask 

that Congress empower landowners to seek to vindicate their rights 

in the courts as well. I think, Mr. Chairman, only if there is meaningful participation by individuals will a bill really have a meaningful effect in reducing condemnations that harm the public. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Eagle appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Eagle. 

We will now proceeding to questioning by Senators, five minutes 

under our rule. 

Mayor Perez, what do you think about Mr. Shelton’s statement 

that urban renewal is really black removal? 

Mayor PEREZ. Mr. Chairman, we know that urban renewal in the 

1960s and 1970s had the effects that were testified to. 

Chairman SPECTER. Do you agree with what Mr. Shelton says 

that urban renewal— 

Mayor PEREZ. I think my experience— 

Chairman SPECTER. Wait a minute—is really black removal? 

Mayor PEREZ. My experience in the city of Hartford is that when 

we have used eminent domain, we have used it for economic purposes in the central business district and in adjoining neighborhoods, and we haven’t had wholesale displacement. 

In the case that I worked on, the Learning Corridor, where we 

acquired 36 different properties, 17 of those properties were owned 

or occupied properties; the others had commercial and rental tenants. 

Chairman SPECTER. Are you saying that your experience has 

been that the taking has not disproportionately affected AfricanAmericans? 

19

Mayor PEREZ. Not in Hartford in the recent past. In the 1960s 

when we had urban renewal that was federally driven, I think that 

was an impact, yes. 

Chairman SPECTER. Mr. Shelton, if you are right about it, is 

there an answer by having better compensation so that when the 

people removed from the neighborhood want to come back to their 

neighborhood, they are able to be able to afford it and that the 

prices are not twice as much, and if so, they have the financial 

means to return to their old neighborhood? 

Mr. SHELTON. I think that is a very helpful component, just compensation; that is, compensation that very well meets the demands 

of the market, but also planning, a program in which you have very 

active involvement from the same people that are going to be either 

temporarily or permanently moved into other communities so that 

they can begin to reassess issues and concerns. 

Mr. Chairman, one of the issues is when you talk about the communities that are oftentimes affected, they are poor communities. 

They are poor communities where individuals and families learn to 

really depend on each other, and once you disband and disperse 

them, they have to set up whole new support networks, things that 

we have a tendency to take for granted, things like temporary 

babysitting, things like helping each other with keeping up their 

property. 

Chairman SPECTER. Can adequate compensation pick up those 

facets? 

Mr. SHELTON. It would begin the process. 

Chairman SPECTER. Professor Eagle, when you talk about standing of the people who are displaced, is that really practical? It is 

very expensive, even if you have standing to go to court, to hire 

Professor Merrill to defend you, or other lawyers—a very expensive 

proposition. 

Does standing really solve the problem or begin to solve the problem? 

Mr. EAGLE. I don’t think, Senator, that it solves the problem, but 

I emphasize that the localities involved and States involved and 

the Federal Government don’t simply have the resources to devote 

to solving the problem. And even though it may be difficult for individuals to attempt to do so themselves, that at least gives people 

who are very concerned a meaningful opportunity to do so. 

And I might observe from the very presence of Ms. Kelo here and 

her case before the Supreme Court that public interest organizations such as the Institute for Justice certainly are available to 

help in such cases and I think that will have a great impact. 

Chairman SPECTER. Ms. Kelo, do you have a personal identity 

with your property; that is to say, will money compensate for the 

taking, as you see it, having been so close to it for so long? 

Ms. KELO. There are things that you can’t— 

Chairman SPECTER. Is money enough to take your property, Ms. 

Kelo? 

Ms. KELO. No. There are some things that you just can’t put a 

price on, sir. 

Chairman SPECTER. Pastor Jenkins, is money sufficient to take 

your church? 

20

Rev. JENKINS. Well, our property was not for sale and money 

cannot really pay back what we lost. 

Chairman SPECTER. Professor Merrill, is there any issue at all 

about our authority to legislate in this field? This is not a matter 

decided on constitutional grounds where the Court is the ultimate 

authority and we are precluded from coming in on public policy. Do 

we have the authority? 

It is pretty hard to find Congressional authority generally here 

from what we have seen in the Roberts hearings, but do we have 

the authority to legislate in this field and establish the public policy? 

Mr. MERRILL. Yes, I think you do have the authority in a couple 

of fashions. One would be, as Senator Cornyn’s bill suggests, to use 

the spending power and to condition the receipt of funds by State 

and local governments for economic redevelopment purposes on 

compliance with certain guidelines that the Congress would set 

down. That is one source of authority. 

I think if the Congress simply wanted to overturn the Kelo decision using Section 5 of the 14th Amendment, that probably would 

be unconstitutional under the Boerne v. Flores line of decisions. 

However, I think that if the Congress wanted to legislate on the 

compensation that is required to qualify as just compensation 

under the Eminent Domain Clause or Takings Clause of the Constitution, it might very well have that authority under Section 5 of 

the 14th Amendment. 

Chairman SPECTER. My red light went on during the middle of 

your answer, Professor Merrill, so I am out of time. I yield now to 

Senator Hatch. 

Senator HATCH. Well, first of all, Mr. Chairman, I am grateful 

that you have held this hearing on these very important issues, 

and I have really been interested in everybody’s point of view here. 

I have to say that I am very concerned about the Kelo decision because I don’t think it totally involves justice. 

Professor Merrill, let me just begin with you. I found your testimony, both written and oral, to be very interesting and very 

thoughtful. Unfortunately, I found it somewhat disturbing as well. 

My first question concerns a statement in your written testimony 

to the effect that the Supreme Court in Kelo, quote, ‘‘intimates that 

the Court in the future may impose a higher standard of review in 

public use cases that has prevailed before,’’ end quote. 

Now, you base this assertion on Justice Kennedy’s concurring 

opinion, but unless I missed something, not one Justice joined in 

that concurrence. I found Justice Kennedy’s position encouraging in 

light of the majority opinion, but I do not believe it, standing alone, 

suggests that the Court may impose a higher standard of review 

in the future. 

Would you care to elaborate on this point for the Committee? 

Mr. MERRILL. Yes, I would be glad to, Senator. If you read the 

Supreme Court’s decisions on public use before Kelo—and it is not 

just Berman v. Parker and Hawaii Housing Authority v. Midkiff, 

but other cases as well—you will see that the Court had applied 

the rational basis standard of review for public use determinations, 

asking whether there was a conceivable public purpose furthered 

by the taking. 

21

One thing I found significant about Kelo is that if you read the 

majority opinion carefully, there is not one reference to rational 

basis review. Justice Stevens did not rely on rational basis review 

in upholding the taking in that case, and I think the reason for 

that is that he needed to write an opinion that would be joined by 

Justice Kennedy and Justice Kennedy in his concurrence specifically indicated that he would like to leave open the possibility of 

a higher standard of review that would be applied in a taking and 

re-transfer that was designed solely to enhance the value or the tax 

assessed value of a particular parcel of property. So I think the 

Court was clearly leaving open the possibility of a heightened 

standard of review. 

The other thing that is significant about Kelo is that there are 

express references not just in the Kennedy concurrence, but also in 

Justice Stevens’ opinion, to what Professor Eagle has alluded to as 

pretext review; that the courts, including Federal courts, could review records in condemnation cases in order to try to ascertain 

whether or not the invocation of a public purpose or public use was 

merely a pretext for favoring a particular transferee or favored private developer. They didn’t direct lower courts to do that, but they 

certainly left open the possibility that that might be required in a 

future case. 

So if you look at the development in the case law, there are at 

least strong intimations of a higher standard of review in Kelo than 

there were in the prior decisions. 

Senator HATCH. Well, thank you. I am going to file a bill by the 

end of this week that does not speak directly to the Kelo economic 

decision, but what it would do is it would—I call it the Empower 

Act, which creates a Federal ombudsman to help property owners 

in eminent domain cases, give them advice, a number they can call, 

a person who really will help them to understand what the ramifications are. It is based on Utah’s own legislative enactment out 

there and it has worked really well in Utah. 

Mr. MERRILL. Yes. I have met your ombudsman, a very impressive fellow. 

Senator HATCH. Yes, he is, and I have been pretty impressed 

with what they have been able to do. This, of course, is short of 

trying to outlaw economic development concerns, which nobody on 

this panel, I think, has argued for at this point, but some have 

thought might be the answer to these problems. 

Mr. MERRILL. Could I just interject here? I think this is very 

much related to the standing point that Senator Specter and Professor Eagle were discussing. It is very important for the Congress 

to understand the way in which most property owners are able to 

obtain a lawyer in an eminent domain case. They hire someone on 

a contingent fee arrangement, and so it is critical for people to get 

legal representation that there be some money on the table out of 

which the contingency fee lawyer can be compensated. 

If you just legislate a prohibitory strategy and you don’t do anything else, then unless the Institute for Justice is willing to come 

along and represent every person in the United States that objects 

to a taking of their property free of charge, these people are going 

to have great difficulty finding a lawyer to represent them because 

22

success in that case would mean no money on the table for the lawyer to be paid. 

So I think that is a piece of ultra-realist reality on the ground 

that the Congress has to keep in mind, and I think something like 

the ombudsman solution or some other creative solutions that 

would provide effective representation for these people is the way 

to be thinking about this problem rather than just simply adopting 

a prohibition without any mechanism whereby individual property 

owners can invoke that. 

Senator HATCH. Mr. Chairman, I would ask you and Professor 

Eagle—both of you are very intelligent in this area—to give us 

some assistance, help us to know how we might be able to resolve 

these problems in a better way, because I can see this economic assistance ban that could be a very, very harmful thing to inner cities. Yet, I have great concerns about what Mr. Shelton has said, 

and Ms. Kelo and Pastor Jenkins. These are real concerns of real 

people in usually the inner cities. 

Mr. EAGLE. Well, Senator, of course, from a policy perspective, 

Justice Stevens gave a speech at the Clark County, Nevada, Bar 

Association recently where he said that he thought himself as a 

policy matter that it was far better to let the market work on economic development than to let a government do it. 

Now, certainly, Congress can have no qualms about letting the 

States do what they wish, of course, and cities do what they wish. 

But it seems to me that for Congress to be funding both sides of 

the bidding wars for economic relocation may not be something 

that this Committee would find desirable. 

I, too, know the Utah ombudsman and I am very impressed with 

his work. But it occurs to me, Senator, that for a person like that 

to be able to give meaningful advice to a particular potential 

condemnee would mean the ombudsman or somebody else is going 

to have to really go into the facts of the situation very closely because these are very fact-bound determinations. 

So, ultimately, the amount of professional time involved in helping someone really is the equivalent of the professional time that 

a lawyer would have to devote, and this might even be the equivalent of some kind of legal aid mechanism here. But, surely, as long 

as groups like the Institute for Justice are at work there, that at 

least would tell localities that if they do interfere with individual 

rights, there is at least the potential that the individuals will have 

the wherewithal to protect themselves in court. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you. 

Mayor PEREZ. Senator, if I could just add to that from the municipal perspective? 

Chairman SPECTER. Mayor Perez. 

Mayor PEREZ. It is important to understand that most municipal 

redevelopment plans, including plans to deal with blight, economic 

development and even public facilities like schools, police stations 

and things of that sort are successful because there is a lot of discussion at the local level before we get to court, and most of the 

cases do not go to court. 

In the cases when you go to court, ombudsmen and other vehicles 

are probably great vehicles to continue that discussion. But the ecoVerDate 0ct 09 2002 14:08 Dec 27, 2005 Jkt 024723 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24723.TXT SJUD4 PsN: CMORC
23

nomic development discussions usually have ample discussion in 

public hearings, how the plans come up, and there is local attention paid to that. my experience has been that if the local jurisdiction spends the right time in planning, as has been discussed, and 

includes all of the stakeholders in that planning, most of those 

issues are dealt with. There are going to be cases where people do 

not want to sell their house and they are going to have to be justly 

compensated. 

Chairman SPECTER. Thank you, Mayor Perez. 

We will go back to the early bird rule now. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. Again, I want to express my gratitude to you for convening this hearing. I think we 

have seen that this is not a simple, straightforward issue and it is 

going to take all of our best work and thought to try to develop 

some legislation. 

The legislation that I have filed, along with Senator Nelson, 

which now has 28 bipartisan cosponsors, was intended to be narrow, recognizing that the States have an important role to play 

when it comes to what local governments can do within their State 

under their State constitutions. Indeed, we have limited it, as has 

already been noted, to use of the Federal eminent domain power 

directly and following Federal funds where they might be used 

rather than trying to, in my view, overreach beyond where it would 

be wise to do so. But, I have certainly benefited from the testimony 

we have heard today about some of the nuance and work that we 

need to do to refine it further. 

Mayor Perez, I know that this is a concern of the cities and I understand your good-faith testimony about your concerns. But, certainly, you can understand how property owners like Ms. Kelo feel 

and their concerns that perhaps Mr. Shelton and others have expressed about those that don’t feel like they have much political influence particularly at the local level when, let’s say, a big developer comes in and is very active politically, let’s say, in city council 

and mayoral elections. Then Pastor Jenkins’ parishioners feel like 

it is not a fair fight. 

Could you say anything that would sort of help address those 

concerns? 

Mayor PEREZ. Senator, I have made a life of empowering people 

and I have spent a lot of time with individuals like Ms. Kelo and 

the good minister next to me and Mr. Shelton making sure that 

people’s rights are protected, that they feel a part of this great system that we call America. 

It is true that people who are in marginal circumstances, whether it is the neighborhood where they live—it is important that 

those people are helped and assisted. But I can tell that if done correctly with a lot of forethought and local input, eminent domain 

works. It works because it requires the public officials to take it seriously from day one. 

If they think they are going to use eminent domain, they are 

going to do everything in their power not to have to use it. I have 

been in cases, whether it is building a major hotel and convention 

center or building a school. It is very hard to convince a lady who 

rehabbed her Victorian house brick by brick, wall by wall, to sell 

24

her house to a non-profit development corporation that I ran at the 

time and ask her to do it for the public good. I guess I was lucky 

because that person happened to be a librarian and her co-owner 

was a math teacher in the same city that we were working on. 

Down the street, there was a young man who had inherited his 

house from his father, and when I went to ask him about including 

his house in the project, he emphatically said no. He was the good 

kid on the block that got beat up by the gang members and he was 

not going to leave that neighborhood just because we wanted to 

build a school. 

Senator CORNYN. Mayor, I appreciate your sensitivity to these 

issues and how you personally have worked with landowners in 

your capacity as mayor. Of course, there are a lot other people 

other than Mayor Eddie Perez who are going to be engaged in making these decisions all across the country and we have to make 

sure that there are some reasonable limits to that awesome power 

that government has to take private property. 

Let me just ask in the short time remaining, I believe it was 

you—and correct me if I am wrong—someone here, and I believe 

it was you, encouraged us not to attach to an appropriations bill 

any legislation that had to do with this issue. But I would ask you, 

in light of what has happened in the Gulf region and the massive 

rebuilding effort that is going to have to take place as a result of 

Katrina, it would seem to me to be an appropriate place for Congress to say where Federal funds can and cannot be used when it 

comes to the reconstruction of that great city, New Orleans, and 

other property located throughout the Gulf region. 

Do you disagree with that? 

Mayor PEREZ. I don’t disagree, but limiting economic development power for those communities is going to make it harder for 

them to put their plans together because that is going to slow down 

until you create a new system that is able to facilitate new legislation that you may put in. It is going to take time for local officials 

to figure out how to clean titles and where to put the levees and 

things that may be in a home’s way. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

We are about to start a vote, so let us turn promptly to Senator 

Brownback. 

Senator BROWNBACK. Thanks, Mr. Chairman, and thanks for 

holding the hearing. I will just be brief so my other colleagues can 

make a statement and ask some questions. Thank you for holding 

the hearing. 

I want to go to Professor Merrill’s point that he made. Just in 

commenting on it, you said you were stunned by the public reaction 

to Kelo. Certainly, I received a lot of comments on Kelo. I think all 

of my colleagues received a lot of comments. 

When I was examining that thought and that set of comments, 

it really went at the very core of having the private property system that we have in the United States where people own private 

property and they look at this as my piece of the rock, my place. 

And it may not be much to you, but to me it is an awful lot. 

I used to do a lot of legal work for farmers and one of the things 

that they would always look at would be this eminent domain issue 

because somebody would come across their property with a big 

25

power line or somebody would take it for a lake or something else. 

They would say, you know, look, I realize it is only worth this 

much as a farm, but this is part of who I am and now you are taking it from me and you are saying you are giving me just compensation. One, I don’t think you are giving me enough for it and, 

number two, it is not for sale, I don’t want to sell it. 

It seems like in the Kelo case you really struck at the people’s 

core inside of them, saying your property is not sacred, it is not 

protected under the Constitution; that there are broader categories 

than what was previously thought under which people could take 

it. I think it really got to a lot of people and that is why you are 

seeing these responses by Congress. 

I will just conclude, Mr. Chairman, by saying I do hope we can 

move a bill on through to reestablish and re-instill with the American public the belief that their property does belong to them and 

there is some notion of this is part of who I am and some sacredness to it, as well. 

When we had Judge Roberts here and I was questioning him 

about this issue, he was saying, look, the legislature can act now; 

we didn’t block them from acting; they can act. So I think it is 

going to be in our court really to try to tighten this down and to 

put some of that thought that this property—there is some sacredness to that. It doesn’t matter whether you are rich or poor or 

where you are. It belongs to you. 

Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Brownback. 

Senator Sessions, we are about 3 minutes into the vote, so I 

think we will have time for two more questioners. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Mr. Eagle, my first concern about this is a concern, I think, of 

most people who have complained to me that believe that the Court 

was not faithful to the Constitution—something we talked a lot 

about in the Roberts hearings. It seems to me that the words ‘‘public use’’—that you could only take the property for a public use, 

which would indicate that the city or the county or some public entity or some substantially controlled private entity would be the 

ones to receive the benefit from it to a public purpose, because in 

a series of opinions culminating in Kelo they reached the decision 

that almost seemed to say for any public purpose. 

To me, the Constitution gives that final bedrock protection. The 

city, let’s be frank, has a conflict of interest. The city is going to 

get a lot more property tax, and the county and the State will if 

you have got an expensive home or an expensive development there 

than a middle-class home. 

So I think, Mr. Merrill, we can’t just rely on the political process. 

Sometimes, those good mayors out there who are determined to 

move their cities forward become less concerned about a person’s 

constitutional right to their property and more concerned about 

making the city a better place to live, in their idea of what is best. 

Professor Eagle, am I correct that this is troubling primarily because of an erosion of the classical understanding of what the Constitution has meant? 

Mr. EAGLE. I entirely agree, Senator. My written testimony goes 

into this, and I think the problem is that there were cases involvVerDate 0ct 09 2002 14:08 Dec 27, 2005 Jkt 024723 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24723.TXT SJUD4 PsN: CMORC
26

ing blight and involving the need for land reform to get away from 

remnants of feudalism where the Supreme Court used very broad 

language and very grandiose statements in explaining what in 

those cases were much narrower holdings. And Justice O’Connor 

certainly goes into that point and now, of course, takes back what 

she called her own errant language in the Midkiff case, where she 

did precisely that. 

Senator SESSIONS. Well, I think Professor Van Alstein at Duke 

said if we love this Constitution and if we really respect it, we will 

enforce it just like it is written even if we don’t agree with parts 

of it, even if we would like to have it say you can take people’s 

property and kick them out of their homes to develop a shopping 

center. 

Having represented property owners in condemnation lawsuits, I 

would say it is very difficult and expensive for the property owner, 

Mayor Perez, to defend the taking. He can usually get a lawyer 

that will defend on the value on the theory that, well, I will have 

a contingent fee and whatever you get above the State’s or the 

city’s offer for the property—if you are offered $100,000 and I get 

$130,000, I get $10,000, maybe, a third of that increase. 

So the property owner can maybe get a lawyer like that, but to 

do into a long-term, in-the-trenches battle with the city to contest 

the taking may cost $50,000 or $100,000 right out of their pocket, 

and most people don’t have it. So I think that constitutional protection is important. 

Mr. Chairman, the Mayor may have a brief response. I wanted 

to finish early and we have got a minute left. 

Mayor PEREZ. Senator, I think that is one of the reasons why a 

lot of this has to be settled at the State and local level, because 

those are the kinds of discussions that are going on in State houses 

and city halls at this time. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. I appreciate this hearing. I really appreciate the testimony of all of you, and I am going 

to make more of a statement here than a question because of the 

lack of time. 

It seems to me that the nub of the issue if the Court’s confusion 

historically of public use with public benefit. The Constitution says 

public use, not public benefit. 

And, Mr. Shelton, you are right on target, in my view, when you 

say the expansion of eminent domain to allow the government or 

its designee to take property simply by asserting that it can put 

the property to a higher use will systematically sanction transfers 

from those with less resources to those with more. I mean, just one 

follows after the other. That is exactly what we are trying to prevent here. 

To the suggestion that somehow we can reform processes, the 

less fortunate are always going to have less of a voice at city hall 

than the powerful interests, and that is just a fact of life. So I don’t 

think that resolves the problem. 

Professor Merrill, I really appreciate the spirit with which you 

approached your testimony. I am going to be a little more hard on 

you than I mean to be here because I really do appreciate that, but 

27

your suggestion here is pretty much the same as the majority on 

the Court. The States can always do this. ‘‘Nothing in our opinion 

precludes any State from placing further restrictions on the power.’’ 

And you say it is better under our Federalist system to let the 

States reform it. 

Justice O’Connor had, I think, the definitive answer to that in 

her dissent. She said, ‘‘States play many important functions in our 

system of dual sovereignty, but compensating for our refusal’’—

meaning the Court’s refusal—‘‘to enforce properly the Federal Constitution, and a provision meant to curtail State action no less, is 

not among them.’’ 

In other words, what she is saying is it is the Supreme Court’s 

duty to enforce constitutional rights. We shouldn’t be passing the 

buck off to State legislatures to do whatever they may think is 

right. I think she is right. By the way, at a book-signing in Phoenix 

over the weekend, talking to some school kids she called the Court 

decision really scary, and then she said ‘‘whew’’ after that. I think 

she was right. The Constitution is for everyone. It is for poor people, it is for rich people, and it cannot be left up, it seems to me, 

to the Court to simply say, well, we will let legislatures deal with 

it because we don’t want to do that. 

To the notion that—and this is where, Mr. Merrill, I want to be 

a little hard on you. You said, you know, if it isn’t resolved by condemnation, cities will use their zoning power or their taxation 

power to accomplish the same thing. You are right. I have seen 

them try to do it. It is wrong. And when you say at least you get 

paid in condemnation, I mean my response is, well, it is like the 

old thing, well, other than that, Mrs. Lincoln, how did you like the 

play? It is not exactly a good result. It is still taken from you, but 

you might get paid, not full value, but at least a just compensation. 

So that doesn’t seem to me to be the answer. 

And then to your final—and I realize this was a constructive suggestion that compensation reforms and better process might be a 

preferable answer. I respectfully disagree. I don’t see how you can 

constitutionally reform—I mean, we can’t change the Constitution. 

It says ‘‘just compensation.’’ That means what it means and we 

can’t say just compensation plus 10 percent. So I don’t see how we 

get to it that way. 

And with regard to the processes, you heard Mr. Perez talk about 

all of the processes the city goes through for its development plans 

and all the rest of it. The poor folks whose land is going to be taken 

are not the ones that have a big voice in that. I don’t see how you 

are ever going to resolve it that way. 

So I come back to the conclusion that private property is a bedrock of who we are. It is part of our freedom in this country, and 

these rights should be just as important to us as any other rights. 

It ought not to be a rational basis test. It ought to be a tougher 

test and there ought to be ways to redress the grievance. We can’t 

just establish a new right. There has to be a remedy as well, and 

I am going to work very, very hard to see that we do that. 

Again, I appreciate your constructive comments. Professor Eagle, 

I would have loved to have heard more from you. And Mr. Shelton 

and Mr. Perez, I understand your point of view. I disagree with 

you. I missed your testimony, Ms. Kelo, but I heard yours, Pastor 

28

Jenkins, and I just think this is a case where Congress—sure, it 

is up to the States to do what they can and they are acting here, 

but I think Congress has a responsibility and we can fashion some 

remedies here that will do some good. Maybe the most important 

thing is to send a message to the Supreme Court that it has got 

an obligation to uphold and defend the Constitution and not duck 

this important issue. 

Enough for my speechifying. If any of you would like to respond 

to the last 25 seconds, you are welcome to do so. 

Mr. MERRILL. Could I just say— 

Chairman SPECTER. Professor Merrill. 

Senator KYL. Since I picked on Professor Merrill, please go 

ahead. 

Chairman SPECTER. This has to be brief because we are on our 

way to vote. 

Mr. MERRILL. First of all, I don’t think anyone is suggesting that 

there should not be an important judicial role in keeping eminent 

domain within its confines, but it doesn’t necessarily have to be a 

role in deciding what is and is not a public use. I think the courts 

have flunked the test of whether or not they can do that properly. 

Courts should also enforce the statutory requirements that have 

to be satisfied to use eminent domain and they have to enforce the 

compensation requirements. If they perform those roles, I think 

they will empower the little people and the property owners. Because of the way they are represented through contingent fee lawyers and because of the way the process works, I think that will 

empower property owners much more than creating some abstract 

right limiting the power of eminent domain which will exist on 

paper, but will never be enforced in reality. That is my basic point. 

Chairman SPECTER. Thank you very much, Professor Merrill. 

As you can see, this has caused quite a lively discussion among 

members; a better attended hearing than many, except that none 

of you is up for Supreme Court Justice. 

Ms. Kelo and Pastor Jenkins, I am sorry we are going to have 

to move ahead because we have got to vote and we don’t want to 

miss that. Thank you for coming in and providing the testimony as 

to what it means to real people who are being affected by it, and, 

Mayor Perez, giving us a little different perspective as to where we 

are, and, Mr. Shelton, with the maxim of the day, urban renewal 

means black removal. And thank you, Professor Merrill and Professor Eagle, for the erudition on the technicalities of the law. 

That concludes our hearing. 

[Whereupon, at 11:35 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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